JINDAL PHOTO FILMS LTD Vs. INDIAN AIRLINES

JUDGEMENT

(1.) Briefly the facts are that the complainant is carrying on the business of manufacturing and bulk supply of photographic materials. They booked for air-carriage of photographic materials with the respondent to various persons at different destinations as detailed in Appendix I. It is alleged that due to negligence and wilful mis-conduct of the respondent and their employees, the goods were not delivered at the destinations inspite of the fact that these were placed in the loading containers. They also failed to return the goods to the complainant inspite of repeated requests. They have suffered the loss as detailed in Appendix I for non-delivery of the goods. In addition to the price of the goods, it is alleged, they are entitled to interest @ 15% p. a. from the date of booking till the date of filing the complaint which comes to Rs.56,216/-. It is further alleged, that the complainant served a notice on the respondent through their Counsel and they paid Rs.550/- as lawyer's fee. Consequently they have prayed that the respondent be directed to pay Rs.5,72,976/- alongwith interest pendente lite to them.

(2.) The complaint has been contested by the respondent. They have inter-alia pleaded that the liability of the respondent with regard to the cargo is limited to the extent of Rs.160/- per kg. of consignment booked under Non International Carriage of Cargo (Other than Baggage and Mail) Regulations, 1980 (hereinafter referred to as 'the Regulations' ). As the goods were not traceable the compensation amounting to Rs.48,960/- @ Rs.160/- per kg. was offered to the complainant, but that was not accepted by them. It is pleaded, that the complainant is not entitled to the amount as claimed by them. However, they have admitted that the goods have been lost and are not traceable.

(3.) The first question that arises for determination is, whether the complainant is entitled to the compensation @ Rs.160/- per kg. or actual price of the goods. In order to determine this question it is necessary to notice Rules 22 (2) and 25 of the First Schedule of the Carriage by Air Act (hereinafter referred to as 'the Air Act'), which are as follows : "22. (1) xx xx xx xx (2) In the carriage of registered lauggage and of goods, the liability of the carrier is limited to a sum of Rs.250/- frances per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paida supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the actual value, to the consignor at delivery.25. (1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct. (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. " The learned Counsel for the complainant has vehemently argued that the Central Government can issue notification in the official gazette under Sec.8 of the Air Act and apply provisions of the First Schedule to non-international flights. The Central Government under Sec.4 of the Carriage by Air Act, 1934, which corresponds to Sec.8 of the Air Act, had issued a notification and applied the rules in the First Schedule to the internal carriage by air. Rule 25 (1) of First Schedule provides that the carrier shall not be entitled to avail himself of the provisions of the Schedule which excludes or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct. According to him the consignment has been lost because of the wilful misconduct of the employees of the respondent and therefore, the provisions regarding limiting the liability by the respondent do not apply in the present case.